House Judiciary Committee Chairman Jerrold Nadler (D-NY) presides over a mark-up hearing to determine whether to hold Attorney General William Barr in contempt of Congress, on May 8, 2019. (Crredit: Chip Somodevilla/Getty Images)
(…) Brookings produced a 108-page report, “Presidential Obstruction of Justice: The Case of Donald J. Trump,” authored by Barry Berke, Noah Bookbinder, and Norman Eisen, on Oct. 10, 2017. They followed up with a 177-page second edition on Aug. 22, 2018, which also came with a lengthy appendix.
Eisen, a senior fellow at Brookings, served as White House special counsel for ethics and government reform under former President Barack Obama and is the founder of CREW (Citizens for Responsibility and Ethics) in Washington. Eisen, according to his Brookings profile page, advised Obama “on lobbying regulation, campaign finance law, and open government issues,” according to his CREW bio. He also served as the ambassador to the Czech Republic from 2011 to 2014.
The second author, Noah Bookbinder, currently serves as CREW’s executive director. Prior to that, “he served from 2013 to 2015 as director of the office of legislative and public affairs at the United States Sentencing Commission,” according to his bio. Bookbinder also served as chief counsel for criminal justice for the U.S. Senate Judiciary Committee and “advised Judiciary Committee Chairman Patrick Leahy (D-Vt.) on a wide variety of criminal justice issues.”
The third author, Barry Berke, is a trial and white collar criminal defense lawyer who recently defended two Deutsche Bank investment professionals “in a criminal case that the government described as its largest tax shelter prosecution.” Earlier in his career, Berke was “a trial lawyer with the federal defender’s office for the Southern District of New York.”
Barry Berke (l), Noah Bookbinder (c), and Norman Eisen (r) (Credit: public domain)
The first Brookings report looked at all the statutes that applied to obstruction, but the second focused more tightly on Section 1512. In many respects, the Brookings second edition provides parallels to the Mueller report, with its lengthy section on “What are the relevant facts?” and a very detailed timeline contained in a 204-page appendix.
The Brookings report appears to be partisan and excludes relevant details at various points. For example, the report notes that Fusion GPS and Christopher Steele, the author of the dossier, were hired by “political opponents of President Trump.” The report fails to mention that Fusion GPS had been hired by Perkins Coie on behalf of the DNC and the Clinton campaign.
The report’s partisan nature was more or less acknowledged in the preface of the second edition:
“In what is perhaps a reflection of the strength of the evidence that can now be marshaled against the president, his defenders have shifted the fight in large measure away from the merits of the obstruction case to a series of questionable defenses based upon the possible consequences of even a meritorious case. In many ways, the question has become less about whether there is a case that Donald J. Trump obstructed justice, and more about whether and in what form the rule of law will be followed.”
The second edition also contains a section dedicated solely to exploring the use of Section 1512—and as the authors note, they did so specifically because 1512 could be applied toward “obstruction” of potential and possible future proceedings:
“Because a ‘proceeding’ need not be ‘pending or about to be instituted’ for Section 1512 purposes, President Trump’s conduct could have been intended to influence a ‘proceeding’ under the statute if a grand jury investigation was foreseeable even if the obstructive behavior took place before a grand jury investigation actually commenced.”
On page 148, the Brookings report discusses the issue of referring the Mueller report directly to Congress:
“Even though there is no prescribed mechanism for Mueller to refer a case to a congressional committee, there are two options for effectuating a referral that are grounded in precedent. Mueller could ask a grand jury to seek permission from the district court in which it is convened to transmit a Report to the House Judiciary Committee. Alternatively, Mueller could file a report with Deputy Attorney General Rosenstein and recommend that he refer the matter to Congress.”
Although the Brookings report strives to make its case regarding congressional referral, at each turn, it is forced to acknowledge that any referral option would be subject to the authority and oversight of then-Deputy Attorney General Rod Rosenstein, who specifically had the ability under special counsel regulations to block any action he deemed “inappropriate or unwarranted under established Departmental practices.”
There are several hurdles to actually making a charge of obstruction against the president.
To start with, the president was told on three separate occasions by then-FBI Director Comey that he wasn’t personally under investigation by the FBI. Therefore, Trump couldn’t have obstructed an investigation of himself, since he didn’t know there was an investigation to begin with.
Regarding claims that Trump obstructed an investigation into individuals other than himself, there would need to be a rationalization against presidential pardon authority. In other words, if Trump maintains full pardon authority for federal crimes, how can anything he does become obstruction in cases relating to others?
Report Authors Retained by House Judiciary Committee
On Feb. 12, 2019, Nadler announced that two of the Brookings report authors, Berke and Eisen, had been retained on a consulting basis as special oversight counsels to the Democrat majority staff. The two men were appointed as consultants to the House Judiciary Committee on Feb 12, well in advance of the April 18 release of the Mueller report. (Read more: The Epoch Times, 6/30/2019) (Archive)